Brock v Roads and Maritime Services (formerly Roads and Traffic Authority of NSW) [2012] NSWCA 404

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Brock v Roads and Maritime Services (formerly Roads and Traffic Authority of NSW) [2012] NSWCA 404 Hearing dates: 5 November 2012 Decision date: 11 December 2012 Before: Beazley JA at [1]; Meagher JA at [2]; Tobias AJA at [3] Decision: 1. Appeal allowed in part. 2. Set aside Order 2 made by Sheahan J on 29 November 2010 in so far as his Honour rejected the appellant's claim to compensation for loss attributable to disturbance within s 59(f) of the Land Acquisition (Just Terms Compensation) Act 1991, with respect to the stock watering system installed by the respondent to serve the appellant's land. 3. Set aside Orders 1, 2, 3 and 4 made by Sheahan J on 16 May 2012 and in lieu thereof order as follows: (i) the respondent to pay the appellant's costs of the proceedings; (ii) the respondent to pay the appellant's costs of her Notice of Motion filed on 12 May 2011; (iii) the appellant to pay the respondent 's costs of its Notice of Motion filed on 17 June 2011, such costs, as agreed or assessed, to be paid within six months of any such agreement or assessment; 4. Direct the parties within 14 days of the publication of these reasons to consult for the purpose of attempting to compromise the appellant's claim for disturbance with respect to the maintenance, operating and replacement costs of the stock watering system on the basis that in the event that no agreement can be reached, the Court will order that the issue be remitted to the Land and Environment Court for further consideration and determination. 5. The respondent to pay 75 per cent of the appellant's costs of the appeal. 6. Note that the amounts referred to in Order 2 made by Sheahan J on 29 November 2010 and Order 2 made by his Honour on 16 May 2012 will need to be adjusted upon determination of the appellant's disturbance claim referred to in paragraph 4 above. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: COMPULSORY ACQUISITION OF LAND - compensation - valuation of land - acquisition of part of appellant's land for construction of road - whether primary judge erred in application of "before and after" method to value acquired land - impact of acquisition on value of residual land - claims for losses attributable to disturbance - need to avoid double counting - no errors of law except in relation to stock watering claim.